By the common law, no action was main tainable to recover damages for the death of a human being; 1 Campb. 493 ; Carey v. R. Co., 1 Cush. (Mass.) 475, 48 Am. Dec. 616 ; Hendrick v. Walton, 69 Tex. 192, 6 S. W. 749. As to the right under statutes, see DEATH. Excessive or inadequate damages. Even in that large class of cases in which there is no fixed measure of damages, but they are left to the discretion of the jury, the court has a certain power to review the verdict, and to set it aside if the damages awarded are grossly excessive or unreasonably inadequate., The rule is, however, that a verdict will not be set aside for excessive damages unless the amount is so large as to satisfy the court that the jury have been misled by passion, prejudice, ignorance, or partiality ; Field, Dam. 683; Clapp v. R. Co., 19 Barb. (N. Y.) 461; Treanor v. Donahoe, 9 Cush. (Mass.) 228; Kountz v. Brown, 16 B. Monr. (Ky.) 577; Nicholson v. R. Co., 22 Conn. 74, 56 Am. Dec. 390; Bell v. Morrison, 27 Miss. 68; Lang v. Hopkins, 10 Ga. 37; Marshall v. Gunter, 6 Rich. (S. C.) 419; Payne v. Steamship Co., 1 Cal. 33; George v. Law, id. 363; Parish v. Reigle, 11 Grid. (Va.) 697, 62 Am. Dec. 666; Dwyer v. R. Co., 52 Fed. 87 ; City of Delphi v. Lowery, 74 Ind. 520, 39 Am. Rep. 98 ; Gale v. R. Co., 76 N. Y. 594; Tennessee Coal & Railroad Co. v. Roddy, 85 Tenn. 400, 5 S. W. 286. But this power is very sparingly used ; and cases are numerous in which the courts have expressed themselves dissatisfied with the verdict, but have refused to interfere, on the ground that the case did not come within this rule. See Potter' v. Thompson, 22 Barb.
(N. Y.) 87; Woodson v. Scott, 20 Mo. 272; Sexton v. Brock, 15 Ark. 345 ; Barnette v. Hicks, 6 Tex. 352 ; Spencer v. McMasters, 16 Ill. 405 ; Whipple v. Mfg. Co., 2 Sto. 661, Fed. Cas. No. 17,516 ; Vreeland v. Berry, 21 N. J. L. 183; McDermott v. Ry. Co., 85 Wis. 102, 55 N. WI 179; Slette v. Ry. Co., 53 Minn. 341, 55 N. W. 137.
As a general rule, in actions of tort the court will not grant a new trial on the ground of the smallness of damages ; 12 Mod. 150 ; 2 Stra. 940; 24 E. L. & Eq. 406. But they have the power to do so in a prop er case ; and in a few instances in which the jury have given no redress at all, when some was clearly due, the verdict has been set aside ; Richards v. Sandford, 2 E. a Sm. (N. Y.) 349; 4 Q. B. 917.
An important case sustaining this view is reported in 5 Q. B. D. 78 ; there two ver dicts of £7,000 and £16,000, respectively, were successively Set aside as inadequate.
In the cases in which there is a fixed legal rule regulating the measure of damages, it must be stated to the jury by the presiding judge upon the trial. His failure to state it correctly is ground of exception; and if the jury disregard the instructions of the court on the subject, their verdict may be set aside. In so far, however, as the verdict is an hon est determination of questions of fact prop erly within their province, it will not, in general, be disturbed. Sedgvv. Dam.' 604.
See CONSEQUENTIAL DAMAGES ; MEASURE OF DAMAGES ; DAMAGE.